Extracted Text

The following text was automatically extracted from the image on this page using optical character recognition software:

250 FEDERAL REPORTER

quantities required, whether more or less than the estimates, for a period ofsix months or one year commencing March 1, 1916." The estimated quanti-ties were then set forth below. The proposals also contained some 49 in-structions to the bidders describing the conditions under which the biddersmight bid and the specifications of the terms used in the schedules describingthe quality and quantity. These were divided into four main divisions, thefirst 12 instructions under the head of "Proposals," the next 14 under thehead of "Quantity and Quality," the next 8 under the head of "Packing,"the next 4 under that of "Delivery," and the remainder under the heading"Contract" The first instruction under the head of "Quantity and Quality"read as follows: "No. 13. The subjoined schedule specifies the quantity asnearly as may be estimated and the quality of each kind of paper required,but the contractor must furnish the quantity which may be needed, whethermore or less than the estimate." The first provision under the subhead "Con-tract" read: "No. 39. The successful bidders will be required to enter intoa contract to furnish the quantity required, whether more or less than theestimates, and to conform in every particular to the instructions, schedule,specifications, and standard samples as fixed upon by the joint committee ofprinting furnished by the Public Printer."Francis G. Caffey, U. S. Atty., of New York City (Julian Hartridge,of New York City, of counsel), for the United States.Joseph G. Cohen, of New York City (Walter C. Noyes, of NewYork City, of counsel), for defendant in error.Before WARD, Circuit Judge, and LEARNED HAND and MAY-ER, District JudgesLEARNED HAND, District Judge (after stating the facts as above).[1] The first question is what the literal meaning of the words is. Theexpress undertaking of the defendant is that it shall "furnish * * *so much of the estimated quantity as may be ordered by the party of thesecond part [the Public Printer], whether more or less than the esti-mates stated in the proposal." This is the only language in the contracttouching quantity at all. If the phrase had been omitted "whether moreor less than the estimates stated in the proposals," we take it that therecould have been no question that the undertaking would have been lim-ited by the estimate as a maximum.[2] The plaintiff urges that words like "more or less," when usedof an amount otherwise ascertainable than by the estimated quantity,do no more that indicate what the parties at the time honestly supposethe quantity will be, and this is quite true. Such words do not them-selves constitute any measure of quantity, since by hypothesis that isdefined by other terms. Brawley v. United States, 96 U. S. 168, 24 L.Ed. 622; Marx v. American Malting Co., 169 Fed. 582, 95 C. C. A.80 (semble); Grant v. United States, 7 Wall. 331, 19 L. Ed. 194. Yet,when the only measure is the estimate itself, they allow only a smalllatitude of variation, much within that here asserted. Norrington v.Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366; Pine River Log-ging Co. v. United States, 186 U. S. 279, 22 Sup. Ct. 920, 46 L. Ed.1164; Hadley Dean Plate Glass Co. v. Highland Glass Co., 143 Fed.242, 74 C. C. A. 462. In the contract proper there was no outsidemeasure but the estimated quantity. There might have been, it istrue, if the language had been "all paper required by the party of thesecond part, whether more or less than the estimates stated in the pro-